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NOTICE

2018 IL App (4th) 151023-U FILED


This order was filed under Supreme August 8, 2018

Court Rule 23 and may not be cited NO. 4-15-1023 Carla Bender

as precedent by any party except in 4th District Appellate

the limited circumstances allowed IN THE APPELLATE COURT Court, IL

under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the


Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
STESON L. CRIDER, ) No. 15CF242
Defendant-Appellant. )
) Honorable
) Robert K. Adrian,
) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court.


Justices Holder White and DeArmond concurred in the judgment.

ORDER
¶1 Held: (1) The trial court did not abuse its discretion in denying defendant’s motion for
change of venue.

(2) The trial court abused its discretion in allowing the admission of photos of
defendant posing with various handguns that had been posted to public social
media websites when those photos were not relevant to the issue of whether
defendant was the person who shot the victim. However, the error was harmless,
as there is no reasonable probability that, in light of the overwhelming evidence
against defendant, the jury’s verdict would have been different without the
admission of the photos.

(3) The trial court did not abuse its discretion in refusing to give defendant’s
tendered non-pattern jury instruction on immunity.

(4) Defendant’s counsel should have requested a limiting instruction upon the
prosecutor’s use of a prior consistent statement, which was introduced for the
purpose of rehabilitation, but such error did not rise to the level required for a
finding of ineffective assistance because defendant could not demonstrate
prejudice. Further, counsel did not render ineffective assistance when he failed to
object to the prosecutor’s alleged reference to the prior consistent statement
during closing argument.
(5) The prosecutor did not improperly vouch for the credibility of the accomplice
witnesses.

(6) The trial court erred in not establishing a deadline for payment of restitution.

¶2 Following a jury trial, defendant, Steson L. Crider, was found guilty of first

degree murder. The trial court sentenced him to 65 years in prison. Defendant appeals, arguing

(1) the court erred in denying his motion for a change of venue, (2) the court erred in allowing

the admission of social media photos of defendant posing with handguns, (3) the court erred in

refusing to give a tendered nonpattern immunity instruction, (4) defense counsel rendered

ineffective assistance by failing to (a) request a limiting instruction regarding a witness’s prior

consistent statement and (b) object to the use of those statements as substantive evidence, (5) he

was denied a fair trial when the prosecutor personally vouched for the credibility of two

witnesses during closing argument, and (6) the court failed to conduct an ability-to-pay hearing

before imposing the restitution amount. We affirm defendant’s conviction and remand with

directions for the trial court to conduct a proper restitution hearing.

¶3 I. BACKGROUND

¶4 This case centers around the bad blood brewing between two groups of young

men. Defendant and his half-brothers, Stefan Crider, III, and Justin Cartmill, along with their

friends Ja’Chaun Parker and Anthony Runnels, had an ongoing dispute with Tyquan Campbell,

whose nickname is Booka, Henry Johnson, whose nickname is Little Henry, and Kordell Tucker,

whose nickname is K.T. Defendant resided in Arizona but was visiting family members in

Quincy, Illinois, during the month of March 2015. Because several of the individuals pertinent to

this case share the last name of Crider, we will refer to them by their first names or nicknames

for ease and clarity.

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¶5 The evidence presented at the jury trial included the following. By Thursday,

March 26, 2015, defendant had arrived in Quincy. Tyrica Humphrey, a “really good friend” and

sometimes girlfriend of defendant, picked up defendant at his grandmother’s house and drove

him to his stepmother Julia Crider’s house. Noticing something around defendant’s waist,

Humphrey asked defendant about it. He pulled out a handgun to show her. She asked defendant

why he had it, and he explained “[j]ust in case somebody, you know, comes up on him and he

has to use it, basically.” Later that night, Humphrey, defendant, and Parker went to her friend

Precious Bailey’s house. Humphrey again saw defendant with a gun when he laid it on the table.

Bailey testified she saw Parker with a gun also.

¶6 On Friday, March 27, 2015, at approximately 5 p.m., Stefan and defendant used

Julia’s black Chevrolet Impala to pick up their friend Leshon Wrencher from work. Wrencher

said Stefan and defendant were mad “about everything that had been going on with Booka and

[Little] Henry and everything else going on with the Fifth Street [] stuff.” He said defendant was

“tired of everybody messing with him or whatever, his family and everything.” Wrencher said

defendant had a semi-automatic handgun on his lap.

¶7 Later that evening, Friday, March 27, 2015, at approximately 10:30 p.m.,

defendant, Stefan, Runnels, and Cartmill began drinking alcohol and smoking marijuana at

Julia’s house for, what Runnels described as, “pregaming.” The group intended to meet others

later at several clubs in town. Around midnight, Humphrey picked up her friend Miracle Parrish

and headed to Players, a tavern. As they arrived in the parking lot sometime after midnight,

Humphrey said she saw K.T., Little Henry, and Booka “having words” with Cartmill. According

to witnesses inside the tavern, Stefan and defendant were there as well. Defendant was very

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angry, presumably about the confrontation. As he made his way to the front door, defendant

pushed a chair out of his way, kicked it, and then flipped a table over.

¶8 After the confrontation, Miracle and Precious went after Cartmill, who had

walked away from Players alone. Stefan, defendant, Shaine Thomas, Parker, and Runnels were

in Julia’s black Impala. According to Runnels, Stefan stopped the car at Fifth and Spruce Streets

because he and defendant wanted to see if Booka, Little Henry, and K.T. were outside where

they typically were, near Barb Stemmons’s house on Fifth Street. Defendant, who Parker

described as “very drunk,” got out of the car and headed down an alley between two buildings.

According to Parker, defendant said “ ‘I’m about to go pop one of those niggas.’ ” Parker got out

of the car to follow defendant and saw defendant tuck a gun into his belt. Parker said he did not

follow defendant further into the yard because he had “a bad feeling.” Parker headed back to the

car.

¶9 Meanwhile, Stemmons’s grandson, Benjamin Hodges, Jr. (“B.J.”) and his friend

Rayshone Humphrey, Jr. (“Ray”), age 12, were at Stemmons’s house. Ray had planned to stay

overnight but he must have changed his mind. Sometime after 12:30 a.m., Ray texted his mother,

asking that she pick him up. He went outside to wait for her on the porch.

¶ 10 As Parker was heading back to the car, he heard a gunshot and saw defendant

running back toward the car. When defendant got inside the car, Runnels said defendant said “ ‘I

hit somebody in the face.’ ” Parker said defendant meant he had shot somebody in the face.

Defendant said he had “just popped one of the niggas.” According to Runnels, defendant thought

he had shot K.T. because K.T. had been wearing a red “hoodie.”

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¶ 11 Back at Stemmons’s house, B.J. went outside to check on Ray. He saw Ray’s

phone with the light on lying by the bushes. He could see Ray on the ground and the glare of

blood. Ray was wearing a red “hoodie.” He had been shot in the head.

¶ 12 Helen Horton, Runnels’s sister, testified that she had been trying to reach her

boyfriend by telephone. When he did not answer, she decided to walk toward his aunt

Stemmons’s house. Horton sat on the steps of a house across the street, hoping to see her

boyfriend, who she suspected was cheating on her. She saw Ray come out of Stemmons’s house.

He was wearing a red “hoodie,” standing on the porch, and looking at his phone. Horton saw a

person appear from between the buildings and shoot Ray. The shooter was also wearing a red

“hoodie” with chains around his neck and a blonde patch in his hair. Horton said she had seen

the shooter with Runnels earlier that night at Players. Witnesses described defendant and

Cartmill that evening as having blonde patches in their hair and defendant with gold chains

around his neck.

¶ 13 When defendant got back into the car, Stefan turned up the music and drove

away. Runnels said defendant asked Stefan what he should do with the gun. Defendant

eventually threw it over a bridge. At about this same time, Cartmill was seen on video

surveillance being dropped off at Indian Hills public housing development with Miracle and

Precious.

¶ 14 Parker and Thomas split from the group. Stefan drove defendant and Runnels to

Julia’s house. Defendant’s sister, Shanice Crider, arrived. The three men got into Shanice’s car, a

green Mustang, and intended to drive to Arizona. They stopped by Precious’s apartment to pick

up Cartmill and then checked into the Super 8 Motel in Hannibal, Missouri. Cartmill and

Runnels drove back to Quincy to Shanice’s house. There, they saw Stefan and defendant’s

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father, Stefan Crider, Jr., whose nickname is Kaney, Julia, and Shanice. Runnels said he told

Kaney “pretty much *** exactly what happened.”

¶ 15 Early Sunday morning, at approximately 1:30 a.m. on March 29, 2015, Stefan and

defendant were taken into custody. Each gave police a statement. Defendant admitted being

upset at Players and admitted owning a gun but denied having one in his possession on March

27, 2015, and denied shooting Ray. Defendant did not testify at trial.

¶ 16 After considering the evidence, the jury found defendant guilty of first degree

murder (720 ILCS 5/9-1(a)(1) (West 2014)). The trial court sentenced him to 65 years in prison

and ordered him to pay restitution to the hospital, ambulance, and funeral home for a total of

$21,250.76.

¶ 17 This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 A. Motion for Change of Venue

¶ 20 Defendant first contends the trial court erred in denying his motion for a change

of venue that he orally made during voir dire. We review a trial court’s decision to grant or deny

a change of venue for an abuse of discretion. People v. Sutherland, 155 Ill. 2d 1, 14 (1992).

¶ 21 On the Saturday before the trial was to begin on Tuesday morning, the local

newspaper published a front-page story about this case titled “Prosecutor Outlines Murder

Theory.” This article referred to and summarized the contents of the State’s seven-page pretrial

motion for the admission of other-crimes evidence and the admission of Stefan’s, Kaney’s, and

Julia’s statements. Defendant’s counsel brought the article to the court’s attention and, as a

result, all parties decided to question potential jurors in panels of four. After questioning eight

potential jurors, defendant’s counsel made an oral motion, arguing that six of the eight potential

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jurors had heard information about the case. Two of the six affirmatively believed they could not

ignore the information, and a third indicated that he probably could not. Defendant’s counsel

argued that “finding an impartial jury may be an impossibility.” The court questioned whether

counsel was making a motion for a change of venue or simply asking for a change in the jury-

selection process. Counsel responded “both.” The court denied “both motions,” finding “that

questioning by four is appropriate at this time.” The court continued: “[t]here has been nothing to

suggest that we will not be able to get a fair and impartial jury from this—this pool of jurors, and

so the court is going to proceed, and we will deny the motion.”

¶ 22 On appeal, defendant claims the trial court’s denial deprived him of “his right to a

trial by an impartial jury.” We disagree.

¶ 23 This court has previously noted:

“A defendant is entitled to a change of venue as a result of pretrial publicity if a

reasonable apprehension exists that []he cannot receive a fair and impartial trial.

[Citation.] ‘Exposure to publicity about a case is not enough to demonstrate

prejudice because jurors need not be totally ignorant of the facts and issues

involved in a case.’ [Citation.] Instead, what is essential is that the jurors

ultimately chosen must be able to lay aside impressions or opinions and render a

verdict based upon the evidence at trial. [Citation.] Thus, the relevant inquiry on

appeal is not how much pretrial publicity occurred, but whether the defendant

received a fair and impartial trial. [Citation.]” People v. Little, 335 Ill. App. 3d

1046, 1052 (2003) (quoting People v. Kirchner, 194 Ill. 2d 502, 529 (2000)).

¶ 24 Based upon our review of the record, not having a fair and impartial jury was not

a concern in this case. Of the 16 jurors and alternates, 10 had heard or read something about the

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case before trial. However, all 16 individuals stated they each understood that the newspaper

article was not evidence and they each believed they could be fair and impartial.

¶ 25 In reaching our conclusion, we refer to two supreme court decisions, where the

court refused to grant new trials based on the jurors’ pretrial knowledge of the case from local

media sources. As in Sutherland and Kirchner, the jurors here may have garnered “general”

knowledge of the case, but each also indicated that he or she could be impartial and decide the

case on the evidence alone. See Sutherland, 155 Ill. 2d 1, 16 (1992); Kirchner, 194 Ill. 2d at 530.

¶ 26 Further, defendant does not produce any compelling evidence of error. He cites to

the voir dire of one particular juror who, when asked what his reaction to the newspaper article

was, stated that he “didn’t think it was bologna.” However, later, that same juror indicated that

he understood the newspaper article was not evidence. Defendant also relied on another juror’s

relationship with the victim. That juror stated the victim used to “come down my line” in the

cafeteria at school. Again, this juror also indicated there was nothing in particular about that

relationship that would make it difficult for her to serve as a juror.

¶ 27 We find the words of the Fifth District on this subject compelling. The court

stated:

“Change of venue, long recognized in our system of law, is a basic tool of

the courts in insuring and protecting the right of an accused to a fair trial untainted

by the passions of the community in which the crime occurred. A defendant may

not, however, frivolously demand removal of his trial to another county at his

whim, assigning as grounds any reasons which to him seem proper. The

requirement is that prejudice of the local citizenry must be alleged and

demonstrated. As stated in People v. Williams, 40 Ill. 2d 522, [531 (1968)]:

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‘The rule is that an accused is entitled to a change of venue when it

appears there are reasonable grounds to believe that the prejudice alleged

actually exists and that by reason of the prejudice there is a reasonable

apprehension that the accused cannot receive a fair and impartial trial.

[Citations.]’

In this case defendant did not allege or endeavor to show that the citizens

of Jackson County were prejudiced against him. It is also to be noted that there is

nothing in the record to indicate that the voir dire examination of the jurors

disclosed any prejudices against the defendant or any matters whatsoever that

would tend to support the defendant’s allegations of local prejudice. Accordingly,

we find that the trial court did not abuse its discretion in denying defendant’s oral

motion for change of venue.” People v. Higgins, 1 Ill. App. 3d 847, 850 (1971).

¶ 28 Likewise, here defendant makes neither a valid nor a persuasive argument that the

jury in this case was partial or biased or that he was denied a fair trial. The trial court put forth

sufficient effort to ensure that (1) the jury was selected in a fair and proper manner, (2) each

member could be impartial, and (3) each understood they were to consider only the evidence

presented. Our review of the record, including the entire voir dire, does not demonstrate any

basis upon which we could find the jury was partial, biased, or prejudiced. As a result, we find

no reason to disturb the trial court’s decision to deny defendant’s oral motion for a change of

venue.

¶ 29 B. Social Media Photos

¶ 30 Defendant next contends the trial court erred when it allowed the State to

introduce photos from a social media account—photos that depict defendant holding and

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pointing different handguns. Defendant argues the photos were not relevant and were highly

prejudicial.

¶ 31 Despite defendant’s suggestion that we apply a de novo standard of review to the

question of whether the photos were legally relevant, we continue to adhere to the long-standing

precedent that the admissibility of evidence rests within the discretion of the trial court. People v.

Pikes, 2013 IL 115171, ¶ 12. We will not disturb the court’s decision absent an abuse of

discretion. Id. “An abuse of discretion has occurred when the trial court’s decision is arbitrary,

fanciful, or unreasonable or when no reasonable person would take the position adopted by the

trial court.” People v. Wilson, 2015 IL App (4th) 130512, ¶ 75.

¶ 32 Generally, evidence is admissible if it is relevant. Ill. R. Evid. 402 (eff. Jan. 1,

2011). Relevant evidence is “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence may be

excluded “if its probative value is substantially outweighed by the danger of unfair prejudice” or

if another rule of evidence excludes the evidence. Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 33 Defendant claims the photos are not relevant to prove the charge of murder, as

they did “not make it any more or less likely that he, many months later, committed this

shooting.” He insists the “only purpose of this evidence was to portray [defendant] as a good-for­

nothing thug who would be likely to commit a murder.” We agree.

¶ 34 At trial, the trial court admitted five photos of defendant posing with other males,

each holding different handguns, some semi-automatic handguns, and/or cash. In more than one

photo, defendant is pointing a gun directly at the camera. These photos were publically posted to

a social media account approximately 35 weeks prior to the shooting. Neither party disputes the

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photos were taken in Arizona. During arguments on pretrial matters, the State initially

represented to the court that these photos were posted on defendant’s social media account.

Defendant denied that he or anyone else posted the photos on his account. Regardless of who

posted the photos, or on whose account they were posted, these photos depict defendant willingly

posing for the photos. Defendant does not dispute that he appears in the photos or that they were

altered in any way.

¶ 35 The State contends these photos are relevant because they tend to demonstrate

“defendant’s ready access to and familiarity with numerous handguns in the time before the

murder.” The State claims evidence of defendant’s access to and familiarity with handguns was

relevant to determine whether defendant shot Ray with a handgun. This may be so if defendant’s

access to and/or familiarity with handguns was at issue. It was not.

¶ 36 In defendant’s initial interview with Detective Gibson on March 29, 2015,

defendant admitted he had previously possessed guns in Arizona. He relayed to Gibson that he

most recently had a Glock, Model 30, .45 caliber. However, he denied having a gun in his

possession on the night of the shooting. Because defendant admitted he had previously had

access to and was readily familiar with handguns, we fail to see how the admission of these five

photos tends to prove any disputed issue at trial. The State reportedly introduced the photos as

evidence having the tendency to make the existence of defendant’s availability to weapons more

probable. The trial court allowed the admission of, what it determined to be, relevant evidence

after indicating it had found the probative value of the photos outweighed the prejudicial effect.

The court relied on the fact defendant had “purposefully pos[ed]” for the photos.

¶ 37 The problem with the State’s argument, and ultimately the trial court’s decision,

was that these photos did not tend “to make the existence of any fact that is of consequence to

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the determination of the action more probable or less probable than it would be without the

evidence.” (Emphasis added.) Ill. R. Evid. 401 (eff. Jan. 1, 2011). That is, defendant’s access to

and familiarity with handguns was not at issue. Defendant denied having a gun that particular

night but did not deny that he had possessed guns previously. The photos do not tend to prove or

make it more probable that defendant had access to a semiautomatic handgun on the night Ray

was shot. Therefore, we find the court’s decision to admit the photos as relevant evidence was an

abuse of discretion.

¶ 38 However, we further find the trial court’s error was harmless in light of the

overwhelming evidence against defendant. The State’s witnesses each testified consistently with

the sequence of events on the night of the shooting. For example, (1) at least three witnesses

testified they saw defendant with a handgun that night; (2) several witnesses testified defendant

was very angry about the confrontation that occurred at Players; (3) occupants of the vehicle in

which defendant was riding testified that defendant made statements about his intent to shoot

someone as he exited the vehicle and then bragged about what he had done when he returned;

and (4) occupants of the vehicle testified defendant threw his handgun over a bridge into the

river below.

¶ 39 This court has previously noted that “the admission of irrelevant evidence is

harmless error if no reasonable probability exists that the verdict would have been different had

the irrelevant evidence been excluded.” People v. Lynn, 388 Ill. App. 3d 272, 282 (2009). In light

of the overwhelming evidence against defendant as outlined above, we reject defendant’s

argument that the admission of the irrelevant evidence may have contributed to defendant’s

conviction. Accordingly, we find the admission of the photos into evidence constituted harmless

error.

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¶ 40 C. Jury Instruction

¶ 41 Defendant next contends the trial court erred in refusing defendant’s proposed

nonpattern jury instruction on the evaluation of the testimony of Runnels and Parker when the

State had granted them immunity. During the jury instruction conference, defendant proposed

Illinois Pattern Jury Instructions, Criminal, No. 3.17 (4th ed. 2000) (hereinafter IPI Criminal 4th

No. 3.17), the instruction on accomplice testimony. Defendant tendered this instruction because

the two witnesses at issue were in the car with defendant immediately prior to the shooting, and

there was evidence that Parker was also armed. Over the State’s objection, the court agreed to

give the instruction. Defendant then proposed the non-IPI instruction on immunity. The court

questioned the origin of the instruction. Defense counsel advised it was “based off of instruction

4.9 of the Ninth Federal Circuit Court of Appeals” and specifically addresses immunity. Counsel

stated that he believed “the submitted non-IPI. instruction adequately addresses the situation in

which a witness has been given immunity, which is more than simply being an accomplice.” He

continued: “I believe it’s appropriate that the jury be instructed on how to handle or consider

such testimony of immunized witnesses.” The court refused the instruction, finding the “issue

was adequately covered by the previous instruction, which is [IPI Criminal 4th No.] 3.17,

testimony of an accomplice.” Defendant claims the court’s decision was error. We disagree.

¶ 42 “ ‘ “The sole function of instructions is to convey to the minds of the jury the

correct principles of law applicable to the evidence submitted to it in order that, having

determined the final state of facts from the evidence, the jury may, by the application of proper

legal principles, arrive at a correct conclusion according to the law and the evidence.” ’ ” People

v. Hudson, 222 Ill. 2d 392, 399 (2006) (quoting People v. Ramey, 151 Ill. 2d 498, 535 (1992))

(quoting People v. Gambony, 402 Ill. 74, 81-82 (1948)). “In reviewing the adequacy of

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instructions, [the appellate] court must consider the jury instructions as a whole to determine

whether they fully and fairly cover the law.” People v. Nutall, 312 Ill. App. 3d 620, 633 (2000).

¶ 43 Illinois Supreme Court Rule 451(a) (eff. July 1, 2006) delineates when non-IPI

jury instruction may be given. Specifically, that rule states: “Whenever Illinois Pattern Jury

Instructions, Criminal, contains an instruction applicable in a criminal case, giving due

consideration to the facts and the governing law, and the court determines that the jury should be

instructed on the subject, the IPI Criminal instruction shall be used, unless the court determines

that it does not accurately state the law.”

¶ 44 The trial court has the discretion to decide whether to give or refuse a non-IPI

instruction. Nutall, 312 Ill. App. 3d at 633. “An abuse of discretion occurs in refusing to give a

non-IPI instruction when there is no IPI instruction applicable to the subject on which the jury

should have been instructed and the jury was therefore, left to deliberate without proper

instructions.” Id. “Conversely, refusal to give a non-IPI instruction does not constitute an abuse

of discretion if there is an applicable IPI instruction and/or the essence of the refused instruction

is covered by other given instructions.” (Emphasis in original.) People v. Thomas, 175 Ill. App.

3d 521, 528 (1988).

¶ 45 Here, defendant argues that his non-IPI instruction should have been given to the

jury because the accomplice IPI instruction does not contemplate whether that witness received

immunity, which, he claims, “warrants even greater suspicion than an accomplice who did not

receive immunity.” He claims the IPI Criminal 4th No. 3.17 instruction does not “go far enough”

in guiding the jury when they must consider the testimony of an accomplice who received

immunity from prosecution.

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¶ 46 The accomplice instruction states that “[w]hen a witness says he was involved in

the commission of a crime with the defendant, the testimony of that witness is subject to

suspicion and should be considered by you with caution. It should be carefully examined in light

of the other evidence in this case.” IPI Criminal 4th No. 3.17. This instruction cautions the jury

to carefully examine the veracity of the testimony of the witness who admittedly committed the

crime with the defendant. Defendant contends this cautionary instruction does “not go far enough

in that it did not accurately reflect the greater suspicion with which witnesses should be

evaluated when their testimony has been procured though immunity.” In other words, defendant

wanted the jury to not only be suspicious and cautious of Runnels’s and Parker’s testimony as

accomplices, but to be really suspicious and cautious because they were both granted immunity

from possible prosecution.

¶ 47 It is reasonable to infer that any witness who admits criminal liability on the

witness stand and has waived his or her Fifth Amendment rights has received some form of

leniency or concession from the State. Thus, instructing the jury to evaluate the testimony with

caution encompasses any reason that such testimony may be suspicious. “After all, the purpose

of the accomplice witness instruction is to warn the jury that there may be a strong motivation

for a witness to provide false testimony for the State in return for immunity or some other form

of lenient treatment.” People v. Davis, 353 Ill. App. 3d 790, 798 (2004). Because the jury was

instructed with IPI Criminal 4th No. 3.17 to be aware of the witnesses’s possible motives for

testifying, the addition of the non-IPI immunity instruction would have been cumulative and

added nothing that had not already been addressed by the given accomplice instruction.

Accordingly, we find the jury was fairly, fully, and comprehensively apprised of the relevant

legal principles. See People v. Parker, 223 Ill. 2d 494, 501 (2006). We find no error.

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¶ 48 D. Ineffective Assistance of Counsel

¶ 49 Next, defendant contends his counsel rendered ineffective assistance when he

failed to request a limiting instruction and failed to object during closing argument to the

prosecutor’s use of Runnels’s statement to Cartmill that defendant said he had shot Ray. During

the investigation of the shooting, Runnels reportedly changed his story several times, leaving out

details or changing his version of the events. Defendant’s counsel, in his opening statement,

warned the jury to be wary of Runnels’s testimony as a witness for the State. He suggested that

the immunity and leniency agreements that Runnels had negotiated with the State, guided the

substance of his testimony—testimony that identified defendant as the shooter.

¶ 50 On the witness stand, Cartmill was asked by the prosecutor: “[W]hen you were at

Kaney’s ***, in fact Anthony Runnels told you that [defendant] had shot Ray, didn’t he?” Upon

defendant’s objection, the prosecutor argued Cartmill’s testimony was admissible as a prior

consistent statement because the prosecutor was trying to rebut counsel’s contention that Runnels

had a motive to falsify his testimony. The trial court agreed with the prosecutor, overruled the

objection, and allowed the prior consistent statement. Defendant claims this was error. He argues

the prior consistent statement was inadmissible and highly prejudicial and that his attorney

should have requested a limiting instruction admonishing the jury that it should consider

Cartmill’s testimony for the limited purpose for which it was being introduced.

¶ 51 A claim of ineffective assistance of counsel is analyzed under the familiar two-

prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984); People v. Henderson,

2013 IL 114040, ¶ 11. To prevail on such a claim, “a defendant must show both that counsel’s

performance was deficient and that the deficient performance prejudiced the defendant.” People

v. Petrenko, 237 Ill. 2d 490, 496 (2010). To establish deficient performance, the defendant must

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show his attorney’s performance fell below an objective standard of reasonableness. People v.

Evans, 209 Ill. 2d 194, 219 (2004) (citing Strickland, 466 U.S. at 687). To establish prejudice, a

defendant must show that, but for counsel’s error, there is a reasonable probability that the result

of the proceedings would have been different. People v. Houston, 229 Ill. 2d 1, 4 (2008). A

“reasonable probability” has been defined as a probability which would be sufficient to

undermine confidence in the outcome of the trial. Id. “A defendant must satisfy both prongs of

the Strickland test[,] and a failure to satisfy any one of the prongs precludes a finding of

ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35. “However, if the ineffective-

assistance claim can be disposed of on the ground that the defendant did not suffer prejudice, a

court need not decide whether counsel’s performance was constitutionally deficient.” People v.

Evans, 186 Ill. 2d 83, 94 (1999).

“The general rule is that a witness may not be rehabilitated by admitting

former statements consistent with his trial testimony. [Citation.] An exception to

this rule exists where there is a charge that the witness recently fabricated the

testimony or that the witness has a motive to testify falsely. [Citation.] Under

these circumstances, a prior consistent statement may be admissible, but only if

the witness makes the prior consistent statement before the motive to fabricate

arose. [Citation.]” People v. Heard, 187 Ill. 2d 36, 70 (1999).

¶ 52 Runnels’s motive to fabricate testimony, i.e., his immunity and leniency deals

with the State, existed at the time of defendant’s trial but did not exist at the time the alleged

statement was made. Accordingly, the prior consistent statement at issue here falls under the

exception to the rule that such statements are otherwise inadmissible. Thus, the trial court’s

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evidentiary ruling was appropriate, as the statement was properly admissible for rehabilitative

purposes. However, no limiting instruction was requested.

¶ 53 Further, during his closing argument, the prosecutor stated: “We know that

Anthony Runnels told Kaney and Julia and [Cartmill] *** that what the defendant did was shoot

Ray and we know that and that is supported by the phone records that I mentioned.” Defendant’s

counsel did not object.

¶ 54 In this appeal, defendant claims his counsel was ineffective for failing to (1)

request that the jury be instructed regarding the limited use of the statement and (2) object to the

prosecutor’s comment during closing argument referencing the statement. “Even where

admissible, prior consistent statements may only be used for rehabilitative purposes; they are not

admissible as substantive evidence.” People v. McWhite, 399 Ill. App. 3d 637, 641 (2010). “Our

supreme court has noted that where the State argues that a prior consistent statement is the truth,

and the jury is not instructed that the evidence should be considered for a limited purpose, the

statement is being used as substantive evidence.” People v. Dupree, 2014 IL App (1st) 111872,

¶ 49 (citing People v. Walker, 211 Ill. 2d 317, 345 (2004)). See also People v. Lambert, 288 Ill.

App. 3d 450, 458 (1997) (“Where the common law applies and a prior consistent statement is

admitted into evidence, an instruction from the court instructing the jury of its limited

rehabilitative purpose is proper.”); People v. Salgado, 263 Ill. App. 3d 238, 247-49 (1994)

(finding counsel’s performance deficient because he did not ask the trial court for a limiting

instruction regarding the use of impeachment evidence). Counsel should have requested an

instruction advising the jury to limit the use of the consistent statement for rehabilitative

purposes only.

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¶ 55 Having determined that defense counsel’s performance was deficient, we must

consider whether counsel’s error rendered the result of the trial unreliable or the proceedings

fundamentally unfair. See People v. Richardson, 189 Ill. 2d 401, 411 (2000). We conclude that it

did not. By the time of Cartmill’s testimony, when the prior consistent statement was admitted,

the jury had heard Runnels himself testify that when defendant got back into the car after the

shooting, he admitted he had shot someone in the face. Runnels said defendant threw his gun

over the bridge. And, Runnels said, when he got to Shanice’s house, where Cartmill, Kaney, and

Julia were, he “pretty much told [Kaney] exactly what happened.” The testimony of the State’s

other witnesses, who had been with or had seen defendant and the others that evening,

corroborated Runnels’s testimony regarding the timing of the events and the veracity of the other

occurrences of the evening. Thus, our review of the totality of the evidence presented at trial

overwhelmingly demonstrated defendant’s guilt. We cannot say that the admission of the prior

consistent statement introduced during Cartmill’s testimony negatively affected the jury’s verdict

in light of the remainder of the evidence presented.

¶ 56 As such, we conclude defendant has failed to show that there is a reasonable

probability that the outcome of his trial would have been different had trial counsel requested the

limiting instruction. See Strickland, 466 U.S. at 694. We find the error harmless and, as a result,

defendant’s claim of ineffective assistance of counsel on this subject therefore fails. Heard, 187

Ill. 2d at 66-67.

¶ 57 Likewise, we find defense counsel’s failure to object to the prosecutor’s reference

during closing argument to Runnels’s statement to Kaney that defendant shot Ray was not

unreasonable. The prosecutor did not refer to the prior consistent statement per se. He did not

reference Cartmill’s testimony. He said: “We know that Anthony Runnels told Kaney and Julia

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and [Cartmill] when he got back *** that what the defendant did was shoot Ray and we know

that and that is supported by the phone records I mentioned.” Presumably, the prosecutor was

commenting on Runnels’s own testimony, as he did not mention that Cartmill had testified to the

same. Without any reference to or indication of the prior consistent statement, the prosecutor’s

argument was permissible; counsel’s failure to object was not unreasonable. Because we find

defendant’s counsel’s conduct was not deficient, defendant cannot demonstrate counsel rendered

ineffective assistance by not objecting to this statement in the prosecutor’s closing argument.

¶ 58 E. Vouching for the Credibility of Witnesses

¶ 59 Defendant also argues he was denied a fair trial because the prosecutor

impermissibly vouched for Runnels’s and Parker’s credibility during his closing argument. We

disagree.

¶ 60 The prosecutor stated:

“Two final subjects. Again, in the category of things, you’re going to get a

big old whooping order of is, oh, these guys are just bought and paid for with

immunity. They will say anything you want them to tell you. Immunity.

Immunity. And you know what? Anyone who has been provided that kind of

consideration in exchange for getting at the truth should be scrutinized and the

judge is going to tell you that an accomplice in any kind of crime, testimony of

that kind of person should be viewed with scrutiny, with suspicion and compared

to all of the other evidence in the case.

And I recommend strongly that you do just that because when you do, you

will see that at every single turn, what Anthony Runnels said, words and all, and

what Ja’Chaun Parker said is supported by independent evidence. Yes, they were

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given immunity. Yes, because sometimes to get in that door, you need to talk to

the people who are on the inside. But when you are satisfied that based upon all of

the evidence, not accepting what they say at face value and that evidence supports

what they say, you have made the right decision.

The decision to give them immunity was mine. And I would do it

tomorrow, and I would do it the next day based on what we know to be true from

the evidence in this case. I apologize not to the defendant, not to anybody for that

decision because it’s the right one in this case to get to the truth.”

¶ 61 “During closing argument, prosecutors are granted wide latitude,” but when a

prosecutor expresses “personal beliefs or opinions or invokes the State’s Attorney’s office’s

integrity, to vouch for a witness’s credibility,” the prosecutor breaches that latitude. Wilson, 2015

IL App (4th) 130512, ¶ 66. Closing arguments are viewed in their entirety, and the challenged

remarks are considered within the context in which they were conveyed. Id. We review de novo

whether a prosecutor’s statements delivered during closing arguments warrant reversal and

remand for a new trial. Id. “Reversal is not warranted unless the improper remarks result in

substantial prejudice to the defendant.” Id.

¶ 62 Defendant acknowledges that he has forfeited review of this claim because he

failed to (1) object at the time to the closing remarks and (2) file a posttrial motion addressing the

issue. Nevertheless, he requests we review the claim under the plain-error doctrine. However, we

need not address defendant’s admitted forfeiture because we choose to consider whether any

error was committed in the prosecutor’s closing argument. For the reasons that follow, we

conclude that defendant has not established any error, much less plain error.

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¶ 63 Referring to the above-cited portion of the prosecutor’s closing argument, we

disagree with defendant’s claim that such comments reveal that the prosecutor was vouching for

the credibility of Runnels and Parker. Rather, we consider the prosecutor’s comments indulgent.

He encouraged the jury to carefully scrutinize the credibility of these witnesses, as the court will

instruct them to do, because it will find, despite the grant of immunity, their testimony will

coincide with the other evidence presented. The prosecutor was merely attempting to refute

defendant’s position that Runnels’s and Parker’s testimony was pawned or solely influenced by

the State’s decision to offer them immunity. Rather than vouching for their credibility, the

prosecutor was explaining that his decision to grant immunity was fully “supported by the

independent evidence.” See People v. Lewis, 2017 IL App (4th) 150124, ¶ 71 (citing People v.

Dresher, 364 Ill. App. 3d 847, 859 (2006)) (the prosecutor can focus or comment on the

credibility of a witness if the comment is based on the evidence or reasonable inferences drawn

from the evidence.) We find no error that would support the application of plain-error review or

an ineffective-assistance-of-counsel claim for counsel’s failure to object.

¶ 64 F. Restitution Order

¶ 65 The trial court sentenced defendant to 65 years in prison and ordered him to make

restitution in the amount of $21,250.76. However, when entering the order, the court did not

comply with the statute governing restitution orders, in that it did not consider defendant’s ability

to pay or designate the manner in which the amount should be paid. Defendant claims this court

should vacate the order and remand for compliance. The State concedes error, and we accept the

State’s concession.

¶ 66 Although the trial court is not statutorily obligated to consider a defendant’s

ability to pay when imposing restitution (People v. Otten, 228 Ill. App. 3d 305, 313 (1992)), the

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court is required to consider a defendant’s financial ability when determining the manner and

time in which restitution shall be paid (People v. Lambert, 195 Ill. App. 3d 314, 334 (1990)).

¶ 67 Section 5-5-6(f) of the Unified Code of Corrections provides as follows:

“Taking into consideration the ability of the defendant to pay, including

any real or personal property or any other assets of the defendant, the court shall

determine whether restitution shall be paid in a single payment or in installments,

and shall fix a period of time not in excess of 5 years *** within which payment

of restitution is to be paid in full.” 730 ILCS 5/5-5-6(f) (West 2014).

The parties agree the court here did not establish a deadline for when payments should be made.

The court’s failure to establish a deadline for payment of restitution makes the restitution order

“fatally incomplete.” In re Estate of Yucis, 382 Ill. App. 3d 1062, 1067 (2008). Thus, we remand

this case for a new restitution hearing to determine an appropriate payment schedule and

deadline for payment based on defendant’s ability to pay.

¶ 68 III. CONCLUSION

¶ 69 For the reasons stated, we affirm defendant’s conviction but remand for the trial

court to conduct a restitution hearing to determine, based on defendant’s ability to pay, a

deadline for defendant to satisfy his restitution obligation and, if appropriate, a payment

schedule.

¶ 70 Affirmed and remanded with directions.

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